Criminal Justice Insider

On August 10, 2020, grand juries will resume in New York City after a four-month hiatus. Assuming that city can keep 23 people safe while sitting together in an enclosed space for an extended time, this means that felony indictments will resume in New York City in short order. Accordingly, it is a good time to revisit exactly what a grand jury does and how it operates.

In New York State, a grand jury is group of 16 to 23 people whose only task is to decide whether there is enough evidence to put a defendant on trial for a felony (a crime for which the punishment is potentially imprisonment for a term of greater than one year). In technical terms, the grand jury votes whether there is probable cause to formally indict a defendant. Pursuant to the Fifth and Fourteenth Amendments, as well as Article I, Section 6 of the New York State Constitution, no defendant can be tried for a felony without the case first having been presented to a grand jury. Presenting a case before a grand jury is not required for misdemeanor charges (a crime for which the punishment is less than one year of imprisonment).

When presenting a case to a grand jury, a prosecutor will provide a statement of proposed charges. The prosecutor then presents the evidence that supports those charges through witnesses without the involvement of the defendant or defense counsel. Unlike a trial jury, grand jurors can ask questions of the witnesses and the prosecutor. At the conclusion of the proceedings, the grand jury will vote on whether to return a “true bill” which authorizes the prosecutors to indict the defendant on felony charges. An affirmative vote by 12 grand jurors is enough to authorize an indictment.

A grand juror operates primarily in secret. Neither the defendant nor defense counsel may attend the proceedings. However, should grand jury witnesses become trial witnesses, their testimony will be provided to defense counsel prior to trial as a prior statement of that trial witness. Further, pursuant to Criminal Procedure Law Section 190.50(5)(a), a defendant has a right to testify before the grand jury upon notice to the prosecutor so long as he or she waives certain immunities that accompany grand jury testimony. The trial judge will also review the grand jury minutes before trial to ensure that the proceedings were fair and procedurally proper.

An indictment by a grand jury is also required in the federal criminal justice system. Federal grand juries in New York were reported to be suspended during the pandemic. However, anecdotal comments made by several judges in the Southern District of New York indicate that grand juries have begun convening, in some cases by video link.

There are a few significant differences between the state and federal grand system. While the function and makeup of a federal grand jury is the same, in a federal grand jury, the prosecutor is not confined by the rules of evidence. Accordingly, the prosecutor can present to the grand jury hearsay testimony that would not be admissible in a normal trial. Rather than hearing from the actual witnesses, a grand jury may hear a federal investigator on what each witness has told them during the course of their investigation. This lowers certain logistical barriers surrounding live witness testimony, but it also eliminates the safeguards created to ensure the authenticity and reliability of the information being presented.

Unlike in the state system, a federal prosecutor is not required to allow a defendant to testify in the grand jury. A federal prosecutor may permit a defendant to testify if he or she waive his or her privilege against self-incrimination before the grand jury.

Given that the grand jury system has been paused for most of this year, and every felony requires an indictment by a grand jury, we expect that there is a significant backlog of cases to be presented. As restrictions imposed by the pandemic are eased in New York, grand jury activity will increase significantly for the remainder of the year and into 2021.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533